Allahabad High Court

Sudhakar Nath Tiwari vs State Of U.P. And 2 Others on 18 November, 2025

Author: Prakash Padia

Bench: Prakash Padia





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:205120
 
 
 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
WRIT - A No. - 17277 of 2025     
 
   Sudhakar Nath Tiwari    
 
  .....Petitioner(s)   
 
 Versus  
 
   State Of U.P. And 2 Others    
 
  .....Respondent(s)         
 
   
 
  
 
Counsel for Petitioner(s)   
 
:   
 
Durga Shanker Mishra   
 
  
 
Counsel for Respondent(s)   
 
:   
 
C.S.C., Pranesh Dutt Tripathi   
 
     
 
 Court No. - 2
 
     
 
 HON'BLE PRAKASH PADIA, J.

1. The petitioner has preferred the present writ petition inter-alia with the following prayers:-

"A. Issue a writ, order or direction in the nature of certiorari to quash the Government Orders dated 23.11.1994, 04.02.2024 (Annexure no. 2 & 3 respectively to the writ petition) issued by the State Government so far as they limit for payment of gratuity in favour of Basic School teachers who retire at the age of 58/60 years and limit for filing up an option form to retire at the age of 58/60 years in order to avail the benefit of gratuity forthwith.

B. Issue a writ, order or direction in the nature of certiorari to quash the Government Order dated 03.02.2023 Annexure No. 4 to the petition) so far as it limits for payment of death cum gratuity in favour of the basic school teachers who had filled an option form to retire at the age of 62 years, but had died the age of 60 years or before 60 years,

C. Issue a writ, order or direction in the nature of mandamus commanding the Basic Shiksha Adhikari, District Kushinagar (Respondent No. 3) to pay Death Gratuity of father of the petitioner alongwith admissible interest in favour of the Petitioner within a specific period as may be directed by this Hon'ble Court."

2. On the other hand it is argued by the learned Standing Counsel appearing on behalf of State-respondents as well as by Shri P.D. Tripathi, learned counsel appearing on behalf of Respondent Nos.2 & 3 that identical controversy has already been dealt with by the Division Bench of this Court in Special Appeal Defective No.284 of 2024 (Smt. Shiv Pyari Srivastava and 3 others vs. State of U.P. and 5 others) decided on 18.04.2024. Order dated 18.04.2024 reads as follows:-

"1. For the reasons stated in affidavit filed alongwith delay condonation application, which constitutes sufficient cause, the delay condonation application is allowed. The delay in filing the Special Appeal is hereby condoned.

2. Heard Sri Ram Yash Maurya, learned counsel for the petitioners-appellants; Shri Devesh Vikram, learned Additional Chief Standing Counsel for the State respondent nos.1, 4 and 6 and Shri K. Shahi, learned counsel for respondent nos. 2 and 3.

3. Present Special Appeal is preferred assailing the validity of the judgement and order dated 18.01.2024 passed by learned Single Judge in Writ A No. 37216 of 2014 (Smt. Shiv Pyari Srivastav and 3 Others vs. State of U.P. and 5 others) as well as order dated 21.04.2014 passed by District Basic Education Officer, Allahabad (respondent no.3) and to allow aforesaid Writ A No.37216 of 2014 filed by the petitioners-appellants.

4. At the very outset, Shri K.Shahi, learned counsel for the contesting-respondent has placed reliance upon the judgment passed by this Court in Smt Sarjeet Kumari Kushwaha and another Vs. State of U.P. and 5 Others (SPECIAL APPEAL DEFECTIVE No. - 295 of 2024, dt. 16.4.2024), whereby, this Court has dismissed the Special Appeal with detailed observations affirming the order of learned Single Judge and as such, it is sought to be contended that the present matter is squarely covered by the aforesaid judgment and the similar treatment may also be extended to the petitioners-appellants. For ready reference, the operative portion of the order dated 16.4.2024 is reproduced below.

"3. Heard Sri Ram Yash Maurya, learned counsel for the petitioners-appellants; Shri Devesh Vikram, learned Additional Chief Standing Counsel for the State respondent nos.1, 4 and 6 and Shri K. Shahi, learned counsel for respondent nos.2 and 3.

4. Present Special Appeal is preferred assailing the validity of the judgement and order dated 18.01.2024 passed by learned Single Judge in Writ A No.37187 of 2014 (Smt. Sarjeet Kumari Kushwaha and another vs. State of U.P. and others) alongwith Writ A No.37216 of 2014 (Smt. Shiv Pyari Srivastav Retd. Head Master and 3 others vs. State of U.P. through Secy. and 5 others) as well as order dated 21.04.2014 passed by District Basic Education Officer, Allahabad (respondent no.3) and to allow aforesaid Writ A No.37187 of 2014 filed by the petitioners-appellants.

5. Learned counsel for the petitioners-appellants submits that the order passed by learned Single Judge is not sustainable in the eyes of law as he has not considered the fact that the petitioners retired on 30.6.2013 after completing the age of 62 years and under Section 9 (1) of the Uttar Pradesh Basic Education Act, 1972 and Nagar Mahapalika Employee Retirement Salary and Gratuity Rules, 1963 they are entitled for the gratuity after retirement at the age of 62 years. Learned Single Judge has wrongly relied upon the Government order dated 23.11.1994, which is not applicable on the petitioners-appellants as they are the teachers of Nagar Mahapalika, Allahabad and not Basic Education Board. The aforesaid Government order is applicable only to the teachers, who are teachers or employees of the Basic Education Board. Learned Single Judge had not considered the fact that the petitioners had no knowledge about the Government order dated 23.11.1994. Neither, the respondent authorities have sent the same to the petitioners for choosing their option nor the petitioners have filled up the option. Learned Single Judge in the impugned order dated 21.4.2014 has not considered the fact that prior to their retirement, the respondent authorities have paid gratuity to several persons. Therefore, the impugned orders are not sustainable in the eyes of law and the same are liable to be quashed.

6. Shri K. Shahi, learned counsel for the Basic Shiksha Parishad has vehemently opposed the appeal and submits that as per the Government order, the teachers were given option to continue in service beyond the normal period of retirement. The extension of service was permitted from 58 years to 60 years and thereafter upto 62 years but with denial of the benefit of gratuity. The appellant-petitioners have failed to provide the option and continued to serve in the department upto 62 years. He submits that while passing the order impugned, the learned Single Judge has considered relevant Government Orders and rejected the claim of petitioners and as such, no interference is required and the appeal is liable to be dismissed.

7. We have proceeded to examine the record in question and find that the petitioners-appellants were working as Head Master and Assistant Teacher in Primary School, Nagar Mahapalika. Finally, they had retired from the service on 30.06.2013 at the age of 62 years. Once the third respondent vide order dated 21.04.2014 had refused to provide the benefit of gratuity then they had filed the said writ petition assailing the validity of the order dated 21.04.2014 and requesting to direct the respondent authority to pay the retiral benefit including gratuity and insurance alongwith 18% interest to them. Finally, learned Single Judge had proceeded to dismiss the writ petition with following observations:-

"2. Both writ petitions are arising out of similar facts, therefore, with the consent of counsel for parties, are decided by a common judgment.

3. It is not under dispute that all petitioners have served up to 62 years of their age i.e. the extended age of retirement and their respective claim for gratuity was rejected.

4. This is second round of litigation. In earlier round, petitioners have approached this Court by way of different writ petitions, which was disposed of by separate order with direction to concerned respondent to pass an order in regard to their respective claim of gratuity.

5. The concerned respondent by different impugned orders, which are similarly worded, has rejected respective claim of gratuity. The issue involved is the interpretation of two G.Os. which are dated 04 February, 2004 and 23 November, 1994. The relevant part of impugned order is reproduced hereinafter:-

"??????? ?? ?? ?????????? ?? ??????? ??? ???? ?????? ?????? ???????? ?????? 636915-5-93-55/89 ?????? (5) ?????? ???? ?????? 23 ?????? 1994 ??? ?? ???? ?? ?? ???? ????? ?????? ????? ?????? ????? ???????? ?? ?????? ????????/???? 17066-92-93 ?????? 30.10.92 ?? ?????? ??? ???? ?? ???? ?? ??????? ??? ?? ?? ????? ?????? ????? ?????? ????? ?? ????????? ??? ??????????? ??????????? ?? ???????? ???????? ?? ????? 58 ???? ?? ??? ?? ???? ??????? ???? ?? ?????? ???? ?? ????? ??? ?????????? ?? ?????? ???? ???? ?? ???? ?? ??? ????? ??????????? ???? ???????? ?? ???? ?????? ???? ?? ?? ??? ?????? ????? ?????? ??????? ???????? ?????????? ?? ???????? ?? ?? ???? ?? ??? ?? ???? ??????? ???? ?? ?????? ???? ?? ?????? ??????????? ?? ????? ?????????? ?? ?????? ??????? ?? ??? ?????? ?????? ????? ?????? ????? ?? ????????? ??? ??????????? ???????????, ?????? ??????? ??? ?????? ???????? ?????????? ?? ????????? ???????????, ??? ?????? ??????? ??? ?????? ?????? ??? ??????? ???????? ??? ??????????? ???????????, ?? 58 ???? ?? ??? ??? ???? ??????? ???? ?? ??? ??? ?????????? ?? ?????? ?????? ?? ????? ?? ?????? ????? ????????? ??? ??????????? ?? ??????? ????, ?? 8 ???? ?? ??? ?? ???? ??????? ???? ?? ?????? ????????? ??????? ?? ???????? ??????? ?? ?????? ????? ?????? ??? ??????? ??????????? ?? ?? ?????? ?? ???? ???? ?? ???? ?? ???? ?????

???? ?? ?? ???? ?? ?? ???????? ??? ????? ????????? ??????????? ?? ??????? ???? ?? ????? ????????? ??????? ?? ???????? ???? ???? ?? ?????? ?? 90 ??? ?? ????? ?? ???????? ??? ????? ?? ?????? ?? ????? ??????? ???? ???? ??????? ?? ??? ???? ?????? ???? ??????? ??????? ????????? ???? ?? ?????? ???? ? ???????? ???? ???? ?? ?? ????? ??? ???? ?????? ?? ????????? ??????? ?? ???????? ?? ???????? ??? ??????? ?????? ?? ??? ??????? ???? ???? ?????? ?? ??? ???????? ???? ??? ?????? ?????? ??? ??????????? ?????

????? ?????? ????? ?????? ??????????? ??????????? ?????? ??????? ??? ?????? ?????? ??? ??????? ?? ?????? ? ??????????? ???????????, ??? ?????? ??????? ??? ?????? ?????? ???????? ?????????? ?? ??????????? ??????????? ?? ?????? ?? ???? ????? ????? ???????? ??????? ?? ???????????????? ?? ??? ???? ???? ???????? ??? ??????? ??????? ????? ????? ????? ????????? ??????? ?? ??????????????? ?? ??? ???? ???? ???? ??????? ?? ???????? ??? ???????? ??? ???????

?? ???? ????? ????? ?? ???? ????? ??? ??-11/3483/-94 ?????? 23 ?????? 1994 ?????? ??????? ????? ?? ?????? ???? ?? ??? ???

??????? ?? ?????? ?? ?? ???? ?????? ???????? ???????? ?????? 289/796-04-28(5) 2004 ?????? 4 ????? 2004 ???? ??????? ???? ????????? ??? ?? ????????? ?? ? ?? ????????? ??? ?????????? ?? ????????? ???????? ?????? 6369/15-5-93-55/89 ?????? (5) ?????? ???? ?????? 23 ?????? 1994 ??? ????? ??????????????? 58 ???? ?? ??? ?? ??????????? ?? ?????? ??? ???? ?? ???? ???????? ?????? 04 ????? 2004 ??? ????? ????????????? 60 ???? ?? ????????? ??? ?? ??????????? ???? ?? ?????????? ???? ???? ??? ???? ?????? ???? ?????? ???????? ?????? 23 ?????? 1994 ??? ????? ??????????????? ?????? ?? ????? ???? ???? ??? ?? 62 ???? ?? ????????? ??? ????? ???? ?? ??????? ?????? 30.6.2013 ?? ??????????? ???, ????? ???? ??? ?????? ??????? ??? ?????? ???????? ????? ???????? ?????? ???? ?? ????? ??????? ???? ?????? 26.10.13 ??? ????? ???????? ?? ??? ?????????? ???? ???? ? ???? ?? ???? ?????????? ?? ???????? ???? ?? ???? ???? ?? ???? ?? ?????? ?? ??????? ??? ????? ??? ?????????? ????? ?????? ???????? (???? ????? ??????? ?????? ????? ??? ?? ???????? ?? ??????? ??0 653 ????? 06.06.2013 ?????? ???????? ????? ??? ??????? ???? ?????? ???? ???? ????, ????? ???????? ???? ?????? ???, ????? ?????? ???????? ?? ??????? ???? ?? ???? ??? ???????? ??????? ???? ? ?????? ????? ???? ??? ??, ???????? ???? ? ?????? ??????? ???? ?? ?????? ?? ???? ???????

??????????? ???? ??????? ??? ?????? ?????????? ?? ??????????? ??????????? ????????? ???? ???? ??? "

6. Learned counsel for petitioners has submitted that in terms of circular of 04 February, 2004, petitioners are entitled for gratuity since he is entitled for all benefits are accrued even after extension of service as well as he has placed reliance on other government order that petitioners? services were earlier in other department and they were absorbed in present department.

7. Per contra, learned counsel for respondent No.3 has supported the impugned order and submitted that G.O. dated 04 February, 2004 has only provided extension of age of retirement and it does not confer any right of gratuity to employees who retired at the age of 62 years.

8. He further submitted that in regard to other G.O. dated 23 November, 1994, it is evident that since petitioners? have opted to work till the age of 62 year, therefore, they have foregone the right of gratuity and there is no ambiguity in interpretation.

9. Heard counsel for parties and perused the record.

10. In the above factual and legal background, this Court has to consider interpretation of above referred G.Os. dated 04 February, 2004 and 23 November, 1994. According to G.O. of 23 November, 1994, in a case where an employee opt to work till the maximum age of retirement i.e. up to 62 years, he has to forego his right of gratuity and will be entitled for pension only.

11. I have also carefully perused the G.O. dated 04 February, 2004 and I have found merit in the argument of learned counsel for respondent that the said G.O. is in regard to extension of age of retirement only and it does not co-relate or extend any right to petitioners for gratuity even working till age of 62 years i.e extended date of retirement.

12. I have also carefully perused the impugned order as reproduced in previous paragraphs wherein concerned respondent has taken the same interpretation as discussed above. So far as, another G.O. is concerned, I do not find that petitioners will have any case on basis of said G.O., which was related only to an effect that petitioners were absorbed in the present service though they were earlier working in other service.

13. Therefore, petitioners are failed to point out any irregularity or illegality in the impugned order which is based on correct interpretation of concerned Government Orders, accordingly, I do not find any case for interference in impugned order, therefore, these writ petitions are accordingly, dismissed. "

8. After considering the submissions made by the learned counsels for the parties and upon perusing the impugned judgment and order, we find that learned Single Judge has appreciated the record and material, as has been placed and the writ petition has been dismissed by the learned Single Judge with cogent and justifiable reasons. In an Intra-Court Special Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case, on a plain reading of the impugned judgment and order, we do not notice any such palpable infirmity or perversity. As such, we are not inclined to interfere with the impugned judgment and order.

9. In view of above, the special appeal sans merit and is, accordingly, dismissed."

5. Considering the judgment and order dated 16.4.2024, we do not find any good ground to take a different view. The Special Appeal is accordingly dismissed in terms of Smt Sarjeet Kumari Kushwaha (supra). "

3. After going through the prayers made in the present writ petition, the Court is more than satisfied that identical controversy has already been dealt with in the aforesaid Special Appeal and the Special Appeal was dismissed.

4. In this view of the matter, the present writ petition is also dismissed in view of the law laid down in the case of Smt. Shiv Pyari Srivastava (Supra).